The Court previously sought responses from the Supreme Court’s administrative side and various High Courts regarding the process of conferring the title of Senior Advocate.
NEW DELHI: Today, 19th March, The Supreme Court of India is re-evaluating its 2017 ruling in Indira Jaising v. Supreme Court, which had established guidelines for designating lawyers as Senior Advocates.
ALSO READ: Supreme Court Petition Challenges Delhi High Court’s Senior Advocate Designation Process
A special bench comprising Justices AS Oka, Ujjal Bhuyan, and SVN Bhatti is hearing the matter, with Solicitor General (SG) Tushar Mehta appearing for the Supreme Court’s administrative side.
The Court had previously sought responses from the Supreme Court’s administrative side and various High Courts regarding the process of conferring the title of Senior Advocate.
The current review comes in light of calls for modifications to the 2017 guidelines, now being considered in the case of Jitender @ Kalla v. State of NCT of Delhi.
SG Mehta, representing the Supreme Court, stressed that the 2017 judgment requires reconsideration.
“I have been requested by the Supreme Court to appear for the Supreme Court,” he stated.
SG Mehta proposed several changes:
- Review of Previous Judgments: “Indira Jaising 1 and 2 judgments need a relook. The experiment which this Court conducted needs a relook.”
- Designation by Practicing Court Only:”Only the court in which an advocate is practicing should designate that advocate.”
- No Individual Judge Recommendations:”Any system where individual judges recommend a certain lawyer to be designated should be stopped.”
- Abolition of Collegium-Based Marking: “The system of individual members deciding basis of marks etc like a collegium should be disbanded. The Supreme Court as a whole should decide on conferring the gown.”
Mehta further emphasized that a lawyer’s performance in court should be the primary criterion for designation. He proposed a secret ballot system to eliminate manipulation and lobbying.
“Personality cannot be a basis for designation. It is a subjective quality. What has to be seen is how does he perform in court. We are all humans and judges are also humans and human tendency is not to displease another person without genuine reason. Transparent marking is only when there is secret ballot. Nowadays, my experience is that during a full court meeting, so and so receive messages that ‘this or that judge has objected to your name’. The system should be simple and incapable of manipulation.”
Senior Advocate Indira Jaising supported stopping lobbying.
“Lobbying also needs to stop,” she remarked.
SG Mehta agreed, adding:
“Yes, persuasive manipulation also has to stop.”
The bench questioned whether the Supreme Court could override High Court rules using Article 142 of the Constitution. The discussion also touched upon whether lawyers should apply for the Senior Advocate designation instead of the court conferring it automatically.
SG Mehta suggested:
“My suggestion is there can be a secretariat… anyone who wants to become a senior can apply.”
Justice Oka cited examples of eminent lawyers who never applied for the designation.
“There were four eminent lawyers who never applied for senior designation and were assisted by senior counsel.”
SG Mehta added:
“Yes, in Gujarat, Advocate SB Vakeel also did not apply and was assisted by Senior Advocates. It is because many would not like to be interviewed.”
The Supreme Court Advocates-on-Record Association (SCAORA) opposed a complete overhaul of the 2017 ruling. Its President, Vipin Nair, said:
“Judgment needs fine tuning with respect to certain aspects, but not a complete overhaul.”
He suggested that interviews should remain, but the weightage given to marks could be reduced.
“Interview stays but marks can be lessened, the articles etc stays. It is all which has been upheld.”
Nair also raised concerns over a recent Supreme Court ruling restricting the marking of lawyers’ appearances in order sheets to only those who argued the case, excluding those who assisted or conducted research.
Indira Jaising Calls for End to Senior Advocate Distinction
Jaising argued that there should be no distinction between Senior Advocates and other lawyers, including the special gown worn by Senior Advocates.
“See, I am not wearing my gown. This does not mean my arguments will be any less. Not on the lighter side. Please take me seriously. It is time to do away with the gown. Also, there should be no distinction between senior and non-senior gowns. The Bar Council also has no such prescriptions.”
She also pointed out that the Supreme Court was treating the case as a review of the 2017 ruling, though no official review petition had been filed.
“I will proceed as if this is a review…but as on today, no one has sought a review of the Indira Jaising judgment. The grounds of review have to be articulated. The procedure needs to be followed.”
Attorney General (AG) R Venkataramani emphasized the need for clear principles in the designation process.
“Senior designation cannot be conferred for the asking, but should be as per some well-settled principles.”
Justice Oka highlighted the challenges judges face in evaluating candidates for Senior Advocate status.
“Can advocates or members of the Bar be made part of the committee which selects seniors? Can full court have lawyers? Can there be a machinery where two lawyers are part of the machinery which evaluates the lawyers? I was part of a committee interviewing candidates in Karnataka. Interviewed five of them each day and then read articles judgments etc for three hours each day. So is the Chief Justice supposed to do all of this? Are we publishing them on the website? No.”
As the hearing concluded, Jaising asked whether the Court was officially treating the matter as a review petition or would continue under the Jitender @ Kalla case.
“Someone has to file an application for review. Just tell me if the procedure will be followed or not. Review petition by an interim application?”
Justice Oka responded:
“Please continue tomorrow.”
Jaising then requested copies of written submissions from the SG and AG, but the bench declined.
“There is no rule that lawyers are bound to give written submissions.”
Jaising objected:
“This is so unfair for me. SG switches from appearing for Supreme Court and his personal opinion…I am being compelled to argue.”
Justice Oka clarified:
“Compel? We are requesting. Hearing was slotted for two days.”
Jaising sought a postponement:
“I am needed in High Court (tomorrow). If it can happen day after.”
Justice Oka firmly declined:
“Sorry, tomorrow 2 pm.”
Earlier, The process of designating Senior Advocates is under review as four High Courts—Delhi, Karnataka, Punjab & Haryana, and Patna—have given their suggestions to the Supreme Court.
A three-judge bench of Justices Abhay S Oka, Ujjal Bhuyan, and SVN Bhatti had asked all High Courts and other stakeholders to submit their opinions on changing the current method of conferring senior designations.
On February 20, the Supreme Court remarked that “a serious introspection” was needed regarding the designation process and referred the matter to Chief Justice Sanjiv Khanna to decide if a larger bench should examine the issue.
